### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 18

- 10362 Summary Calendar

UNITED STATES OF AMERICA , Plaintiff

- Appellee

v. UNDRAL DEWAYNE JERNIGAN , Defendant

- Appellant

Appeal from the United States District Court for the Northern District of Texas USDC No. 4:17

- CR

- 224

- 1

Before BARKSDALE, DENNIS, and SOUTHWICK, Circuit Judges. PER CURIAM: * Undral Dewayne Jernigan contests his 110

- month sentence , imposed following his guilty plea to possession of a firearm by a convicted felon , in violation of 18 U.S.C. §§ 922 (g)(1), 924 (a)(2)

. He contends the district court clearly erred in a pplying a four

- leve l Sentencing Guideline § 2K2.1(b)(6)(B) enhancement , based on f inding the firearm was found in close proximity to drugs and d rug paraphernalia during a drug

- trafficking offense. He

* Pursuant to 5 th Cir. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 th Cir. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED December 14, 2018 Lyle W. Cayce Clerk Case: 18-10362 Document: 00514761417 Page: 1 Date Filed: 12/14/2018No. 18

- 10362

2 maintains: he was not involved in such an offense; and the firearm did no t facilitate his drug possession. Although post

- Booker , the Sentencing Guidelines are advisory only, the district court must avoid significant procedural error, such as improperly calculating the Guidelines sentencing range. Gall v. United States , 552 U.S. 38, 48

– 51 (2007). If no such procedural error exists, a properly preserved objection to an ultimate sentence is reviewed for substantive reasonableness under an abuse

- of

- discretion standard. Id. at 51; United States v. Delgado

Martinez , 564 F. 3d 750, 751

– 53 (5th Cir. 2009). In that respect, for issues preserved in district court, its application of the Guidelines is de novo ; its factual findings, only for clear error. E.g. , United States v. Cisneros

- Gutierrez , 517 F.3d 751, 764 (5th Cir. 2008 ). “In determining whether a Guidelines enhancement applies, the district court is allowed to draw reasonable inferences from the facts, and these inferences are fact findings reviewed for clear error.” United States v. Coleman , 609 F.3d 699, 708 (5th Ci r. 2010) (citation omitted)

. “A factual finding is not clearly erroneous if it is plausible in light of the record as a whole.” United States v. Alcantar , 733 F.3d 143, 146 (5th Cir. 2013) (internal quotation marks and citation omitted). Guideline § 2K2 .1(b)(6)(B) provides for a four

- level increase if defendant “used or possessed any firearm . . . in connect ion with another felony offense ”

. Guideline § 2K2.1(b)(6)(B). The enhancement applies “if the firearm . . . facilitated, or had the potential of fa cil itating, another felony offense ”

. Guideline § 2K2.1, cmt. n.14(A)

. “ ‘ [I]n the case of a drug trafficking offense in which a firearm is found in close proximity to drugs, drug

- manufacturing materials, or drug paraphernalia ’ the enhancement automaticall y applies because the Sentencing Commission has concluded that ‘ the presence of the firearm ha s the potential of facilitating ’ these types of offenses ”

. United States Case: 18-10362 Document: 00514761417 Page: 2 Date Filed: 12/14/2018No. 18

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3 v. Jeffries , 587 F.3d 690, 692 (5th Cir. 2009) (emphasis omitted) (quoting U.S.S.G. § 2K2.1 cmt. n.14(B)(ii))

. Jernigan disputes the district court’s conclusion he was engaged in a drug

- trafficking offense based on the evidence presented at sentencing. At the time of his arrest, Jernigan was in possession of a revol ver, 22.4 grams of heroin, synthetic marijuana (K

- 2), several plastic bags , and a bottle labeled Mannitol, a known cutting agent used in the manufacture and delivery of narcotics. A law

- enforcement agent testified at sentencing that the hero in was worth a pproximately $800 to $900. Jernigan ha d an extensive criminal history, including a prior conviction for drug distribution, and admitted to dealing drug s in the past. Further, Jernigan had been unemployed for over a month at the time of his arrest. It is not implausible, in the light of the record as a whole, that Jernigan intended to distribute the heroin he possessed

. See Alcantar , 733 F.3d at 146

– 48. Therefore, the court did not clearly err in applying the § 2K2.1(b)(6)(B) enhancement because the preponderance of the evidence supports the conclusion Jernigan was engaged in drug trafficking

. United States v. Rodriguez , 630 F.3d 377, 380 (5th Cir. 2011)

. AFFIRMED. Case: 18-10362 Document: 00514761417 Page: 3 Date Filed: 12/14/2018